Lummus Canada Inc. v. Airaksinen
0762-81-U; 0763-81-U Lummus Canada Inc., Applicant, v. Karl Airaksinen, et al, Respondent; Acme Building and Construction Limited and Tesc Contracting Limited, Applicants, v. Local 1036, Labourers' International Union of North America, Jimmie Lewis and Wayne Bashaw, et al, Respondents
BEFORE: M. G. Mitchnick, Vice-Chairman.
APPEARANCES: R. C. Filion and T. Ervin for the applicant Lummus; G. Grossman for the applicant Acme and Tesc; A. M. Minsky and others for the Respondents.
DECISION OF THE BOARD; July 8, 1981 (orally)
- These are consolidated applications under section 123 of The Labour Relations Act arising out of a work stoppage in progress at the Eldorado nuclear refinery construction project near Blind River, Ontario. Section 123 provides as follows:
123.-(l) Where on the complaint of an interested person, trade union, council of trade unions or employers' organization the Board is satisfied that a trade union or council of trade unions called or authorized or threatened to call or authorize an unlawful strike or that an officer, official or agent of a trade union or council of trade unions counselled or procured or supported or encouraged an unlawful strike or threatened an unlawful strike, or that employees engaged in or threatened to engage in an unlawful strike, it may direct what action if any a person, employee, employer, employers' organization, trade union or council of trade unions and their officers, officials or agents shall do or refrain from doing with respect to the unlawful strike or the threat of an unlawful strike.
(2) Where on the complaint of an interested person, trade union, council of trade unions or employers' organization the Board is satisfied that an employer or employers' organization called or authorized or threatened to call or authorize an unlawful lock-out or locked out or threatened to lock out employees or that an officer, official or agent of an employer or employers' organization counselled or procured or supported or encouraged an unlawful lock-out or threatened an unlawful lock-out, it may direct what action if any a person, employee, employer, employers' organization, trade union or council of trade unions and their officers, officials or agents shall do or refrain from doing with respect to the unlawful lock-out or the threat of an unlawful lockÂout. R.S.O. 1970, c. 232, s. 123(1, 2).
(3) The Board shall file in the office of the Registrar of the Supreme Court a copy of a direction made under this section, exclusive of the reasons therefore, in the prescribed form, whereupon the direction shall be entered in the same way as a judgment or order of that court and is enforceable as such. R.S.O. 1970, c. 232, s. 123(3); 1975, c. 76, s. 32.
At the conclusion of the hearing of this application on July 8, 1981, the Board issued an oral decision and order, and confirmed that order in writing on July 9th. The reasons for the Board's decision, given orally at the hearing, are now set out hereunder.
Having regard to the evidence before it, there is no question in the Board's mind that employees of Tesc, being members of Local 1036 of the Labourers' International Union, because of various grievances, acted in concert, on and after June 30, 1981, to refuse to carry out their work at the Eldorado project, thereby engaging in a strike. They were then joined by employees of Acme, being also members of Labourers' Local 1036. Certain of these employees then set up picket lines at the access road to the project, with the undoubtable purpose, and having the effect, of causing other tradesmen employed on the job not to report for work. It appears that a complete shutdown of the project has taken place, and is continuing to date. The Board must assess the timeliness, and hence the lawfulness of this strike, as well as the conduct of the other tradesmen who refused to cross the picket line.
The Board is in full agreement with the submission of counsel for the Labourers' International Union, Local 1036, and its members, that these are proceedings of a most serious nature. Counsel for the Labourers took the position at the hearing that the respondents were therefore entitled to put the applicants to the strict proof of all elements necessary to establish their case. While the Board is wholly in agreement with this general submission of counsel, the Board was also of the view that such proceedings ought not to be side-tracked by what could be described as "non-issues" in the case. Specifically, the Board was required to deal with the issue of proof of the collective agreements. In determining the timeliness of strike or lockout activity under The Labour Relations Act, the Board is concerned only with the existence or otherwise of an operative collective agreement. The Board is not otherwise concerned with the provisions of that agreement. In the course of the proceedings, the Board admitted certain documents put forward as provincial collective agreements in effect and binding between the parties hereto. These documents were put forward with less than what one might term "strict proof' in the usual sense. Some were the commonly-used "booklet" copies which bear no original signatures; others were in long form and bore signatures which were not properly proved. Owing to the new regime of provincial bargaining in the construction industry, none of these collective agreements on their face indicated the contractors who were bound by the agreement, nor would the originals be signed by an